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Patrick, Esq.
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Category: California Employment Law
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I have been misclassified as an independent contractor by my

Resolved Question:

I have been misclassified as an independent contractor by my employer/client and I have been working there, pretty much consistently for the past 5 years. I was under the impression that I would not get paid my hourly wage or overtime for extra hours worked if I was an employee so I did not contest it. After becoming physically exhausted by having too much work to do, and after taking on added responsibilities for which I am getting the same hourly rate as 5 years ago, I said my grievances in an e-mail and have not been asked to return to work since. My question is, is it worth it to file for unemployment? What specific documentation will I need to support the misclassification? I have timesheets or notes of total hours worked, but I did not record when I started and finished work. The main type of work I have been doing is specifications writing, office administrative duties for an interior design firm. Also, what consequences will this have on my filing as an independent contractor with the IRS and State Franchise Board?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

It can't hurt to file for unemployment, though as you know, you will not be eligible for it if it is determined that you were an independent contractor.

Under California law, there is no "set" definition for what constitutes an independent contractor.

Typically, California's Division of Labor Standards Enforcement (often referred to as the "DLSE") will start with the presumption that a worker is an employee. (Labor Code Section 3357) This is a rebuttable presumption however, and the Court's actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which by itself is controlling.

For most matters, the DLSE will apply the "economic realities" test that the California Supreme Court adopted in S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. The most significant factor that S. G. Borello & Sons considers is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, courts may find an employer-employee relationship if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)

Other points to remember in determining whether a worker is an employee or independent contractor are that the existence of a written agreement claiming to establish an independent contractor relationship is NOT determinative (Borello, 349), and the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative with respect to independent contractor status. (Toyota Motor Sales v. Superior Court (1990) 220 Cal.App.3d 864, 877)

You may also have a claim for retaliation if your employer fired you in response to you suggesting that you were not an IC and that you were entitled to the benefits of being an employee. For info on how to file a retaliation claim and under what circumstances you can do so, visit this link:

Hope this helps and good luck. Please bear in mind that the above does not constitute legal advice and to click "accept" if my answer has been helpful so that I can get paid for my time. Thanks so much.


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Customer: replied 5 years ago.
I didn't receive answers to my other questions. Am I allowed only one question?
Expert:  Patrick, Esq. replied 5 years ago.
Unfortunately I cannot answer to IRS portion of your question because I am not a tax expert, and really that is a very separate issue. In regard to what "specific documentation you will need to support the misclassification," there is no specific rule requiring certain forms of documentation. You will want to provide all documents that tend to support the above eleven criteria that I listed as factors for considering whether a worker is an employee. I hope that this helps clarify.
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